First Amendment

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What was intended as a safeguard against abusive telemarketing is being twisted into a potentially far more sweeping restriction, raising serious First Amendment concerns for corporate communicators of people’s contact information. Colorado’s Prevention of Telemarketing Fraud Act’s (“PTFA”) listing provision (“Listing Provision”) threatens corporate sharing of cell phone numbers, regardless of whether these cellular phone numbers are already in the public domain. In just the past year, plaintiffs’ attorneys have filed almost 30 PTFA putative class actions, claiming that Coloradans’ cell phone numbers are presumptively private no matter how widely disseminated. In these shakedown suits, plaintiffs’ attorneys target companies for alleged knowing listing of “a cellular telephone number in a directory for a commercial purpose unless the person whose number has been listed has given affirmative consent[.]” Colo. Rev. Stat. Ann. § 6-1-304(4).Continue Reading Beware Plaintiffs Threatening the First Amendment – Colorado PTFA Listing Provision Litigation Seeks to Muzzle Freedom of Speech

In a significant First Amendment ruling, the Fifth Circuit in Spectrum WT v. Wendler held that a drag show hosted by an LGBTQ+ student organization at West Texas A&M University qualifies as expressive conduct.  The decision underscores that drag performances, like other forms of artistic and political expression, can fall within the core protections of the First Amendment. Continue Reading Fifth Circuit Holds that Drag Show is Expressive Conduct Protected Under First Amendment

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On May 29, 2025, the New Jersey Court of Appeals reversed dismissal in Satz v. Starr, No. A-2785-23, 2025 WL 1522032 (N.J. Super. Ct. App. Div. May 29, 2025), holding that the plaintiff’s voluntary dismissal of his claims did not preclude the defendants from seeking counsel fees and costs under New Jersey’s anti-SLAPP law, the Uniform Public Expression Protection Act (UPEPA), N.J.S.A. 2A:53A-49. While precedent in New Jersey, this decision can be looked to as persuasive authority in other UPEPA jurisdictions that a plaintiff cannot avoid liability under UPEPA simply by voluntarily dismissing the complaint.Continue Reading New Jersey SLAPPs Back: New Jersey Court of Appeals Eradicates Anti-SLAPP Loophole

A federal court last week sustained a First Amendment challenge to a Utah law aimed at addressing the use of social media platforms by minors, holding that the law’s proponents failed to demonstrate that the law served a compelling interest or was narrowly tailored.Continue Reading NetChoice Succeeds in Striking Down Utah Social Media Law Under First Amendment

Media and the LawFor more than 30 years, the Kansas City Media and the Law Seminar has been at the forefront of important discussions in the media bar.  As this year’s committee chair, I may be a bit biased, but I think the focus of the seminar coming up on May 3-4 is one of the most important topics we have tackled to date: The impact of technology, culture, and politics on media freedoms.  There’s no doubt that our media and political climate has changed dramatically over the past few years, and technology continues to push the envelope as laws struggle to keep up.  It’s fascinating to think that at least half of this year’s panels involve topics that didn’t even exist when this seminar started — things like “social media,” “fake news,” and “Tweets.” 
Continue Reading Join Vedder Price at the 31st annual Media and the Law Seminar

On June 19, 2017, the United States Supreme Court held that a portion of the first clause of the U.S. Trademark Law (the “Lanham Act”), which is commonly known as the disparagement clause, was facially unconstitutional under the First Amendment. Specifically, the Supreme Court found that a denial of registration of a mark under the disparagement clause of the Lanham Act, which prohibits registration of a mark that may “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead,” violates the Free Speech Clause of the First Amendment. The ruling, while rather shocking as to its reach, came as no surprise to the trademark community. This decision now casts a shadow on the remainder of what is called Section 2(a)1 and opens the door to further expansion of our understanding of speech.

This litigation began when Mr. Simon Shiao Tam, a humble guitar player in a band made up of Asian-American men that called itself The Slants, pushed to change the law. Mr. Tam’s fight began at the Trademark Office in 2010, when he filed an application to register the name of his band as a trademark.2 In 2011, Mr. Tam’s first application to register the band’s name as a trademark was denied under the disparagement clause. After Mr. Tam refiled a second application for the mark THE SLANTS and was rejected on the same grounds, he appealed the rejection to the Trademark Trial and Appeal Board, the Federal Circuit Court of Appeals, and ultimately the Supreme Court.3
Continue Reading The Slants Win in Matal v. Tam: Trademark Registration Cannot Be Denied for Offensive Terms

This is the fourth in a series of blog articles relating to the topics to be discussed at the 30th Annual Media and the Law Seminar in Kansas City, Missouri on May 4-5, 2017. Blaine C. Kimrey and Bryan K. Clark of Vedder Price are on the planning committee for the conference. In this article, we discuss how CNN is using advertising guidelines to fight back at being labeled “fake news.” The intersection of technology, truth, and the First Amendment will be among the topics to be discussed at the 2017 seminar.

Since the 2016 presidential election, the term “fake news” has become a ubiquitous part of our media and political vocabulary. But as we all know, the “fake news” label is often, well, “fake.”  So what can media entities do when they are unfairly tagged with the “fake news” moniker?  Normally not much—the First Amendment would make it rather difficult to challenge the truth of a such a hyperbolic claim (and realistically, the media has no real interest in curtailing these free speech rights).  CNN, however, has found a way to fight back that is sure to stir debate in media, legal and political circles.
Continue Reading Is It “Fake News” To Call The Media “Fake News?”

This is the third in a series of blog articles relating to the topics to be discussed at the 30th Annual Media and the Law Seminar in Kansas City, Missouri on May 4-5, 2017. Blaine C. Kimrey and Bryan K. Clark of Vedder Price are on the planning committee for the conference. In this article, we discuss the Tor Browser and its relationship to privacy laws. Tor’s impact on anonymous speech and the tension between First Amendment rights and online threats to reputation, privacy and public safety will be among the topics discussed at the 2017 seminar.

Even among somewhat sophisticated privacy professionals and lawyers, the Tor Browser is sometimes a bit of a mystery. What is Tor, is it even legal, and, if so, what are the pros and cons associated with Tor? At a fundamental level, Tor is actually quite simple—Tor protects the privacy of its users by spreading communications across of a series of servers around the world to make it difficult to determine who or where the individual user is. Tor is a volunteer operation and it is available to anyone willing and able to download the free software from Tor’s Web site.

In some circles, using Tor has taken on a negative connotation because (not surprisingly) individuals engaged in nefarious activities online have turned to Tor as a way to mask their identities. But there is nothing per se illegal about using Tor, and it can be a legitimate way to avoid unwanted digital tracking from corporations and circumvent censorship in countries under the thumb of oppressive regimes. In fact, the U.S. State Department has contributed millions of dollars over the years to help with the development of Tor in the interest of encouraging free speech in other countries.
Continue Reading Tor Presents Compelling Privacy Puzzle

This is the first in a series of blog articles relating to the topics to be discussed at the 30th Annual Media and the Law Seminar in Kansas City, Missouri on May 4-5, 2017. Blaine C. Kimrey and Bryan K. Clark of Vedder Price are on the planning committee for the conference. In this article, we explore recent developments related to “champerty,” which involves the funding of a lawsuit by a person with no direct interest in the case. The topic of revenge and retaliation against the media through litigation funding will be one of the topics at the 2017 seminar.

Earlier this month, Hulk Hogan settled his lawsuit against what remains of Gawker Media for $31 million, bringing to an end years of litigation that resulted in a stunning $140 million verdict that rocked the media defense bar. But the lasting implications of the case that ultimately shuttered Gawker.com remain unclear. For lawyers who defend media entities, the Gawker case is viewed as a cautionary tale of bad facts making bad law and the dangers of going against an adversary funded by an enemy with deep pockets. But not everyone agrees with this perspective. Speaking recently to the National Press Club, Peter Thiel (the billionaire who funded Hogan’s litigation) seemed to suggest that it was Hogan, rather than Gawker, who was unable to get fair treatment in the courts. “One of the striking things is if you are middle class, upper middle class, a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system,” Thiel said. “It costs too much.”
Continue Reading What Hath Hulk Wrought – Media Girds for Battle vs. Billionaires